City of Butler, PA M-2 Heavy Industrial District

All parking and loading areas and paved walkways on any industrial property shall be lighted so as to produce one footcandle of light intensity, as measured three feet above the pavement throughout the area.

No lighting on any industrial property shall produce a glare upon adjacent public roads or adjacent properties.

Noise.

No noise, as measured along the boundary separating residential or commercial districts from the M-2 District, shall exceed 50 decibels, whether or not such noise is intermittent or steady.

No noise, as measured along any property line within the M-2 District, shall exceed 75 decibels whether steady or intermittent.

Smoke.

No waste material of any kind may be burned in the open air on any industrial property. Enclosed incinerators are permitted, provided that all other requirements of this chapter and other applicable ordinances are met.

In no case shall smoke or waste emitted from any heating or manufacturing process exceed those requirements of the State Department of Environmental Protection currently in effect.

Dust, dirt, gases and odors.

Manufacturing processes producing dust and dirt shall be confined within a completely enclosed area.

Dust, dirt, gases and odors shall be gathered within the building housing the manufacturing process producing such by-products or within equipment designed for collecting or processing such products.

Glare. All operations that produce glare or sky-reflected light shall be conducted in an enclosed area so that no glare is discernible beyond the boundaries of the M-2 District.

Vibration. Vibration from any operation within the M-2 District shall not be discernible outside the property in which the vibration-producing equipment is located.

Outside storage.

All outside storage of materials shall be screened from view from any adjacent public street or from beyond the edge of the M-2 District by a solid fence at least six feet high or solid hedge at least six feet high at maturity and at least three feet high when planted.

Outdoor storage of liquids shall be either in vented underground tanks, required if liquids are flammable, or in tanks set at grade, surrounded by a dike of sufficient height and bulk to contain the maximum capacity of the tanks if ruptured.

Water use. Water may be drawn from underground sources, provided the well is set back more than 150 feet from the boundary of the M-2 District, unless prohibited by Ordinance No. 1580, known as the "Non-Use Aquifer Ordinance of the City of Butler, Pennsylvania."[1]

[1]

Editor's Note: See Ch. 148, Groundwater.

Liquid waste.

All requirements of the State Department of Environmental Protection shall be met in the construction and operation of all on-site industrial liquid sewage disposal plants.

If an industrial operation is connected to a public or community sewage system, the amount and quality of sewage may not exceed that normally produced by 30 residences per acre for each industrial acre. Owners of industrial operations shall provide the operators of public or community sewage systems to which the industry is connected with a chemical analysis of proposed sewage, and the operator has the right to refuse entrance into the system of any sewage components that may interfere with the normal cycle of the sewage treatment plant.

(3)

In no case shall liquid wastes be dumped or permitted to flow or seep into a stream or drainage way.

(4)

Liquid wastes that cannot be disposed of on the site shall not be permitted to accumulate.

Solid waste. Solid wastes shall not be permitted to accumulate in an open storage area on any property.

Remainder of property. All areas of any industrial property not covered by buildings or paved shall be planted in grass or other ground cover.

Development standards specially applicable to adult entertainment establishments.

Purpose for regulation of adult entertainment establishments or sexually oriented businesses. Adult or sexually oriented businesses cannot be completely prohibited. The first amendment to the U.S. Constitution protects adult books, magazines, videos, and live performances unless they are obscene, which is defined by the U.S. Supreme Court in the Miller v. California case.[2] Local zoning must allow adult businesses in some districts. Courts have upheld regulations of adult businesses if:

The restriction is not based on speech, but on the secondary effects of the business as identified by studies entered into the record when the regulations were passed. (These studies are referenced at the end of the section.)

The restriction promotes a substantial public purpose; the location is no closer than 800 feet to any residential zone, a single- or multiple-family dwelling, church, park, or school and/or requires that the adult business be no closer than 800 feet to another adult business to protect against harmful effects on neighborhoods.

[2]

Editor's Note: See 413 U.S. 15 (1973).

Legislative intent.

It is hereby declared a matter of legislative declaration and belief that the morals of minors of the City of Butler are threatened by the presence of adult entertainment establishments or sexually oriented businesses as said term is hereinafter defined. These establishments/businesses, and the type and character of the merchandise, paraphernalia and services sold in them, create an atmosphere of enticement for minors of the City of Butler that is increased by the lascivious and suggestive advertising often employed to promote the availability of these products and services. It is the intent of the City of Butler to regulate the exposure of these establishments/businesses.

It is the firm belief of the legislative body that it has a vital duty and role to protect the moral fiber and standards of its residents, in particular, the minors of the community.

(c)

The location of adult entertainment establishments or sexually oriented businesses is of vital concern to society with regard to their location near areas where minors may learn, play, pass by or would be exposed to the advertising, window displays or the general atmosphere encompassing their operation. The legislative body finds that adult entertainment establishments or sexually oriented businesses, because of their very nature, are recognized as having objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances, thereby having a deleterious effect upon adjacent areas. Special regulation of these businesses is necessary to ensure that these adverse secondary effects will not contribute to the blighting or downgrading of the surrounding neighborhoods. One of the purposes of this regulation is to prevent the concentration or clustering of these establishments/businesses in any one area.

(d)

It is the intent of the City Council enacting these regulations relative to adult entertainment establishments or sexually oriented businesses to exercise only those powers granted to it. These regulations shall in no way be deemed to permit any adult entertainment establishment or sexually oriented business, as defined herein, which would otherwise be prohibited or in any way regulated by any other law, statute, ordinance, rule or regulation.

(e)

Further, these regulations are enacted to promote, protect and facilitate the public health, safety, morals and general welfare of all residents of the City of Butler.

(3)

Definitions.

It is the purpose of this subsection to provide clear and concise definitions of those words, terms and phrases most commonly utilized in the provisions of these regulations in order to assist in the interpretation of said provisions and to ensure uniformity of application. It is intended that the following words, terms and phrases, whenever used, shall be construed as defined in this subsection, unless from the context a different meaning is clearly intended. The following definitions are intended to supplement the definitions contained in Article II and are intended to be applicable to this article only.

ADULT ENTERTAINMENT ESTABLISHMENT or SEXUALLY ORIENTED BUSINESS

For the purpose of this article, "adult entertainment establishment" and "sexually oriented business" are defined as follows:

An establishment where a substantial portion of the use is related to adult materials, visual representations, performances, or services characterized by an emphasis upon specified sexual activities or specified sexual anatomical areas, including an adult arcade, adult bookstore, adult cabaret, adult motel, adult motion-picture theater, adult-only entertainment establishment, adult theater, escort service or agency, adult model studio, sexual encounter center, sexually oriented spa, and adult theater, more specifically defined below:

[1]

ADULT ARCADEAny establishment to which the public is permitted or invited for any form of consideration wherein coin-operated, slug-operated, or electronically, electrically, or mechanically controlled still or motion-picture machines, projectors, video or laser disc players, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depiction or display of specified sexual activities or anatomical areas.

[2]

ADULT BOOKSTOREAny establishment that offers adult materials for retail sale or rental as a substantial portion of its stock-in-trade, for any form of consideration, including printed matter, visual representations, instruments, devices or paraphernalia.

[3]

ADULT CABARETA nightclub, bar, restaurant, or other similar establishment that regularly features live performances characterized by the exposure of specified sexual anatomical areas or by specified sexual activities, films, motion pictures, videocassettes, DVDs, slides, or other photographic reproductions in which a substantial portion of the total presentation time is devoted to the showing of material characterized by the emphasis upon the depiction or description of specified sexual activities or specified sexual anatomical areas.

[4]

ADULT ENTERTAINMENTMovies, videos, still or motion pictures, photographs, slides, films or other visual representations, books, magazines or other printed material or live dramatic, musical or dance performances which are sexually explicit or depict nudity, seminudity or sexual conduct, as defined herein.

[5]

ADULT MASSAGE PARLOR or SEXUALLY ORIENTED SPAAn establishment which provides massages of all kinds, during which nudity or sexual conduct is displayed, but not including massage therapy practiced by or under the supervision of a medical practitioner such as a medical doctor, physician, chiropractor or similar professional licensed by the commonwealth.

[6]

ADULT MATERIALSMedia, matter, or services distinguished or characterized by the emphasis on specified sexual anatomical areas or specified sexual activities. Adult materials may include any one or more of the following: books, magazines, newspapers, periodicals, pamphlets, posters, prints, pictures, photographs, slides, transparencies, figures, images, descriptions, motion-picture films, videos, compact discs, laser discs, DVDs, phonographic records, tapes, or other printed matter, visual representations, tangible devices or paraphernalia designed for use in connection with specified sexual activities, or any service capable of arousing prurient interest through sight, sound or touch.

[7]

ADULT MINI MOTION-PICTURE THEATER or MINI MOVIE THEATERAn enclosed building with a capacity for accommodating fewer than 50 persons, used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to sexual activities or anatomical genital areas, and/or which shows films rated "X" by the Motion Picture Association of America for public viewing and/or for observation by patrons therein.

[8]

ADULT MODEL STUDIOAny place where, for any form of consideration or gratuity, figure models who display specified anatomical areas are provided to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by persons paying such consideration or gratuity, except that this provision shall not apply to any figure studio or school of art or similar establishment which meets the requirements established in the Education Code of the Commonwealth of Pennsylvania for the issuance or conferring of, and is, in fact, authorized thereunder to issue and confer, a diploma.

[9]

ADULT MOTELA hotel, motel, or similar commercial establishment that offers accommodation to the public for any form of consideration, provides patrons with adult motion pictures by means of closed circuit television transmissions, films, videocassettes, DVDs, slides, or other photographic reproductions that are characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined herein, and has a sign visible from the public right-of-way that advertises the availability of adult and/or sexually explicit materials along with room rentals, or offers a sleeping room for rent for a period of time that is less than 10 hours, or allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than 10 hours.

[10]

ADULT MOTION-PICTURE THEATER or MOVIE THEATERAn enclosed building with a capacity for accommodating 50 or more persons, used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to sexual activities or anatomical genital areas, and/or which shows films rated "X" by the Motion Picture Association of America for public viewing and/or for observation by patrons therein.

[11]

ADULT NEWSRACKAny coin-operated machine or device which dispenses material substantially devoted to the depiction of nudity or sexual conduct, as defined herein, specified sexual activities or specified anatomical areas.

[12]

ADULT NIGHTCLUBAny establishment, including private clubs, which serves food and/or beverages, whether or not the consumption of alcohol is permitted on the premises, and which offers entertainment, either live or recorded, exhibiting nudity or sexual conduct, as defined herein, or which provides service by waitpersons who exhibit nudity or sexual conduct as defined herein.

[13]

ADULT-ONLY ENTERTAINMENT ESTABLISHMENTAn establishment where the patron directly or indirectly is charged a fee, where the establishment features entertainment or services which constitute adult material, or which features exhibitions, dance routines, gyrational choreography, persons exhibiting specified sexual anatomical areas, strippers (male or female), female impersonators, or similar entertainment or services which constitute adult material.

[14]

ADULT SERVICESAn adult arcade, adult bookstore, adult massage parlor, adult motel, adult mini motion-picture theater, adult motion-picture theater, adult newsrack, adult nightclub, bathhouse, body painting studio, Internet cafe, escort service or any other establishment or organization offering adult entertainment, as defined herein.

[15]

ADULT THEATERA theater, concert hall, auditorium or other similar establishment which regularly features live performances which are distinguished or characterized by an emphasis on specified sexual activities or by exposure of specified anatomical areas for observation by patrons.

[16]

ESCORT SERVICE or ESCORT AGENCYA business that provides a service by appointment or upon request where individuals leave one premises and go to another premises for a specified period of time for the purpose of engaging in nudity or sexual conduct as defined herein.

[17]

INTERNET SWEEPSTAKES CAFES or INTERNET CAFESConsumer sales promotions that involve the use of computer-generated games following the purchase of a game card which entitles the purchaser to a phone card or a set amount of network access time (NAT). If the purchaser chooses, he or she can use the game cards to play online Vegas-style computer games. In playing these games, the purchaser can win more Internet time and points that have no cash value (both of which are predetermined at the time the game card is purchased) but give them chances in sweepstakes where they can win money and/or prizes. Unless specifically used, the NAT or phone minutes never decrease while the purchaser plays the computer-generated games. These cafes are for adult use and entertainment only.

[18]

NUDITYThe showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the areola, or the showing of the human male genitals in a discernible turgid state even if completely or opaquely covered.

[19]

SEXUAL CONDUCTPatently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representations, descriptions or acts of masturbation, excretory functions, homosexuality, sodomy, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area or, if such person is female, her breast(s).

[20]

SEXUAL ENCOUNTER CENTERAn enterprise that, as one of its principal business purposes for any form of consideration, offers activities or physical contact, including wrestling or tumbling, between male and female persons and/or persons of the same sex when one or more of the persons exhibits or displays specified sexual anatomical areas for the purpose of specified sexual activities.

[21]

SEXUALLY ORIENTED SPAA place or building that provides massage services and engages in activities commonly associated with a sexual encounter center.

[22]

SPECIFIED ANATOMICAL AREASIncludes any of the following:

Less than completely and opaquely covered human genitals, pubic region, vulva, buttocks, anus, anal cleft or female breasts below a point immediately above the top of the areolae. This definition does not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, skirt, leotard, bath suit, or other wearing apparel, provided the areola or nipple is not exposed in whole or in part.

Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

[23]

SPECIFIED SEXUAL ACTIVITIESIncludes the following:

Actual or simulated sexual intercourse, oral copulation, oral intercourse, oral or anal copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context of a sexual relationship and any of the following depicted sexually oriented acts or conduct: anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism and zooerasty.

Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence.

[c]

Use of human or animal masturbation, sodomy, oral copulation, coitus or ejaculation.

[d]

Fondling or touching of nude human genitals, pubic region, buttocks or female breasts.

[24]

SUBSTANTIAL PORTIONA measurement, count, or ratio used in the determination of a sexually oriented business, to wit:

For adult materials in displays visible or self-accessible to the public: more than 10% of the content, stock-in-trade, shelf space, or inventory of the establishment.

For adult materials in back rooms with some level of access control which separates the back room from other parts of the store, such as a locked door released by a button situated high above the door knob or by store personnel through a remote unlocking device: more than 20% of the gross floor area of the establishment.

[c]

For performance activities or the showing of films, motion pictures, videocassettes, slides, or similar visual or photographic reproduction: more than 10% of the use of the establishment is characterized by the depiction or description of:

[i]

Presentations emphasizing specified sexual activities or specified sexual anatomical areas; or

[ii]

The showing of movies where the Motion Picture Association of America movie rating system or a rating system using similar constitutionally acceptable standards would apply an adults-only rating, such as "NC-17," "X" or "XXX," to describe a movie that most parents would want to have barred from viewing by their children.

(4)

Performance standards and limitations for adult entertainment establishments or sexually oriented businesses.

Minimum spacing and proximity requirements:

[1]

No adult entertainment establishment or sexually oriented business shall be located within 800 feet of any other adult entertainment establishment or sexually oriented business.

[2]

No adult entertainment establishment or sexually oriented business shall be located within specified distances of certain land uses as set forth below:

No such establishment shall be located within 800 feet of a residential district.

No such establishment shall be located within 800 feet of any parcel of land which contains any one or more of the following specified land uses, whether said uses are located in the City of Butler or in abutting municipalities:

[i]

Park/amusement park.

[ii]

Camp (for minors' activities).

[iii]

Child-care facility.

[iv]

Church or other similar religious facility.

[v]

Community center.

[vi]

Museum.

[vii]

Playground/swimming pool.

[viii]

School/educational facility.

[ix]

Other lands where minors congregate.

[x]

Bar or tavern.

[3]

The distance between any two adult entertainment establishments or sexually oriented businesses shall be measured in a straight line, without regard to intervening structures, from the closest point on the exterior parcel line of each establishment or business. The distance between any adult entertainment establishment or sexually oriented business and any land use specified in Subsection M(4)(a)[2] above shall be measured in a straight line, without regard to intervening structures, from the closest point on the exterior parcel line of the adult entertainment establishment or sexually oriented business to the closest point on the property line of said land use.

(5)

Parking. Parking shall be established at the minimum ratio of one parking space for each 100 square feet of gross floor area and one parking space for each employee.

(6)

Visibility from street. No person operating an adult entertainment establishment shall permit, or cause to be permitted, any stock-in-trade which depicts, describes or relates to specified sexual activities and/or specified anatomical areas as defined herein to be viewed from the street, sidewalk or highway, or from any adjacent public or privately owned property.

(7)

Location of building windows, doors and entries. All building openings, entries, windows, and doors of sexually oriented businesses shall be located, covered, or serviced in such a manner as to prevent a view into the interior from the public right-of-way or from adjacent public or privately owned property. For new construction, the building shall be oriented so as to minimize any possibility of viewing from any public right-of-way or any public or private property.

(8)

No screens, loudspeaker, or sound equipment shall be used in adult motion-picture theaters (enclosed or drive-in) or other sexually oriented businesses that can be seen or discerned from the public right-of-way or any public or privately owned property.

(9)

Exterior identification signage is permitted, subject to other applicable provisions of this Zoning chapter and the municipality's sign code.[3] However, to limit exposure of sexual images to minors, no exterior signage may include verbal or written messages, graphics, drawings, or other illustrations of specified sexual anatomical areas or specified sexual activities.

[3]

Editor's Note: See Ch. 223, Signs.

(10)

Any resolution, ordinance or part of any resolution or ordinance inconsistent herewith and any amendments thereof are hereby expressly repealed except as provided for in this subsection. However, it is expressly provided that the provisions of this subsection shall not affect the validity of and shall be construed consistently with this chapter, as amended. If there is a conflict, the more restrictive provision shall control.

(11)

References for studies on the secondary effects of adult or sexually oriented businesses.

Methodological Critique of the Linz-Yao Report: Report to the City of Toledo, OH, by Richard McCleary, PhD, and James W. Meeker, JD, PhD, May 15, 2004.